The importance of rules

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

A truth universally acknowledged is that great winners never cheat. Not Jordan, Bryant, Kasparov, Pele, Gretzky, Ali, Senna, or Schumacher. They win because they have the skills and talent and drive to win. And they are great because despite their huge desire to win they still retain in themselves, buried deep within their DNA’s, a sense of fairness that may or may not be rooted in their supremely confident belief that they are the best in what they do. Maradona’s greatness is sometimes questioned because of his "fist of god" antic (amongst others). It is the mediocre ones that cheat. And it’s the losers that whine for the rules to be skewed (mid-game) in their favor. These dictums apply to lawyers as much as it does to athletes.

In the context of the impeachment proceedings, the past days have seen loud calls from certain sectors for a distancing from the so-called technical or legal or judicial approach. Such are misguided at best. While indeed there may be merit in a more "liberal" interpretation of the rules, this nevertheless presupposes the application of rules itself. What some call "technicalities" (i.e., the Rules of Court) are but means to attain the "truth" that people say they want. It must be emphasized that lawyers don’t resort to rules because they want to confuse people. They resort to those rules because experience and logic (and the rules themselves being the product of experience and logic, including the evidentiary rules in full display currently at the impeachment proceedings) have shown that this is the objective, impartial way to arrive at that truth against the mere passions of the crowd (or incompetent lawyers).

Some lawyers (and not a few crusading journalists) have harped on not letting the rules get in the way of finding the truth. But the rules, the evidentiary rules, were precisely there to help people arrive at that truth. Who is there to say that a particular document or testimony is to be admitted or is irrelevant? Not all documents are correct copies or relevant, some witnesses may only be indulging in gossip or are biased -- the rules are there to help us sift through the evidence that should be considered and that which should be discarded. The main reason why the Rules of Court (which includes evidentiary rules) are so important is because they exact objectivity.

And people should remember this: the rules are there precisely for situations that we have at this moment. Let me repeat: the rules are there precisely for cases like the impeachment trial that we have now -- when there are loud, angry calls that have ostensibly no presence of doubt that an individual should be punished for a crime he is supposed to have committed. The rules are helpful in ordinary cases, when there are relatively cooler heads that are fighting over an issue or rights. But the rules simply become necessary when unthinking but powerful people are terrifyingly certain that a fellow human being must be punished for an act he is alleged to have done. Because it is at that point that we then must exercise restraint and the rules are there to help us impose that restraint.

This is also all the more important now that the House prosecution team has proven themselves to be not above lying, fabricating incredibly weird stories that border on the insulting of normal people’s intelligences, or using fake documents to advance their dubious cause. The rules are all the more important now that we’ve seen that not a few senator-judges have proven themselves as either being without any sense of shame in flaunting their bias or being so unbelievably arrogant (and perhaps also lacking considerable IQ points) in thinking they are the supreme power in this country.

People should not confuse the matter of admissible evidence with the standard of proof necessary to attain judgment (for a fuller discussion on the latter, please see my article Technicalities Matter http://www.jemygatdula.blogspot.com/2012/01/technicalities-matter.html, a portion of which this present article is based).

Interestingly enough, during the impeachment trial of then President Estrada, with a House Prosecution Panel that included now retired Supreme Court justice Antonio Nachura, assisted by private lawyers such as now former ombudsman and solicitor-general Simeon Marcelo, nobody complained about the impeachment trial procedures (which were practically the same as they are today). No member of the prosecution team at that time whined about the rules. And, it must be emphasized, they were prosecuting a president who, unlike a Supreme Court chief justice, has the entire resources of government at his disposal.

In the end, calls to disregard the law or rules just to convict CJ Corona only betrays the lack of respect that some self-righteous people have for the law. At the very least, nevertheless, this much is true: for the first time since 2010, smart people are now able to laugh again at stupid people.


The assault on religion

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

The past few months have seen US President Barack Obama’s administration make repeated attempts to undermine religious rights. Even if taken from the narrow perspective of a politically beleaguered figure trying to shore up support from his core constituency, nevertheless, the same still manages to draw parallels with the Aquino administration’s obsessive insistence in pushing for the RH Bill. Ultimately, both would lead to the conclusion that the measures pushed by both governments on their respective countries have implications far beyond the ostensible objectives publicly declared of them.

Last January, the US Supreme Court dealt a significant blow to President Obama’s determined assault on religious rights. In Hosanna-Tabor Church v. Equal Employment Opportunity Commission, an employment termination case involving a woman fired for violating religious doctrine by resorting to court litigation rather than resolve her claims through church processes, the US Supreme Court declared that churches enjoy exemption from "employment discrimination laws" and that churches are entitled to hire and fire free from government interference.

The most recent from the Obama administration has to do with the so-called HHS contraceptive mandate, which requires employers to provide health insurance for their employees. Unfortunately, the mandate includes treatment such as abortions, sterilization, abortifacients, and contraceptives. All of which, clearly, go against Catholic beliefs for being immoral and against natural law.

After encountering huge public outcry against the mandate, as well as a lawsuit filed by the Eternal Word Television Network (EWTN) at the US District Court in Birmingham, Alabama petitioning to declare the federal rule unconstitutional [for full disclosure, I am legal counsel for the EWTN Foundation here in the Philippines], President Obama blinked. Or buckled under. Proposing an "accommodation" (which in actuality is really a compromise or at least President Obama’s attempt at one), the new plan supposedly relieves employers, due to religious convictions, of providing insurance coverage for abortions, sterilization, abortifacients, and contraceptives. Instead, it’s the insurance companies that will shoulder responsibility for such "treatments" and all the employer has to do is provide general insurance coverage.

Now, I bet (particularly if you’re Pro-Life or one who wants to uphold the rule of law in relation to the impeachment proceedings, and thus quicker on the uptake) it didn’t even take you readers more than a few seconds to realize what’s wrong with Obama’s "accommodation." As renowned apologetic Jimmy Akin wrote: "The idea that it will be insurance companies that pay for such services is just a shell game. Where are insurance companies going to get the money to pay for these services? They aren’t the Federal Reserve. They aren’t empowered to create money out of nothing the way the Federal Reserve is. If they’re going to pay doctors, nurses, and pharmacists to provide these things then they are going to pay for them with money they got from someone else. Who else? Why! The very same churches, church-related organizations, and individuals who are otherwise paying."

That is why the position of the US Bishops in reaction to this (quite correctly) was to reject it outright. For the US Bishops, the "only complete solution" to this issue is a rescission of the mandate. Again the US Bishops are absolutely right. A public statement signed by almost a hundred academics and intellectuals, including Robert George of Princeton, said that: "The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization. This is a grave violation of religious freedom and cannot stand."

The parallelisms of the religious struggles against contraception here and abroad are clear. There is nothing in our Constitution that says citizens (including government officials) shouldn’t be guided by the tenets of their faith. The Constitution, rather than discouraging religions, actually supports religions by mandating tolerance for all religions. Hence the prohibition on discriminatory treatment against or preference for any single religion. One reason why the RH Bill is offensive is because it forces Catholics to support (through the duty to pay taxes) something they believe is immoral. Note that there is no law banning the private use of contraceptives.

The foregoing also confirm that to mount civil disobedience in this country against a (presumed) RH Law is reasonably justified under our Constitution. Not to mention our history. The Supreme Court ruling validating the Cory Aquino government in Lawyers League vs. Aquino is one good example, as well as Estrada vs. Escritor where it was declared that: "Man stands accountable to an authority higher than the State." Considering the highly dubious necessity of an RH Law, the latter ruling arguably provides the basis for refusing to pay taxes due to religious conviction. After all, if civil disobedience calling for a change in government (as Cory Aquino did in 1986) is legally acceptable, then all the more should civil disobedience in the mere form of non-payment of taxes against an RH Law.


Impeaching dishonesty

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

At the least, the impeachment trial highlighted a disconcerting trend in Philippine society: our tolerance with dishonesty. Such is exemplified in two instances: the first had to do with the Supreme Court’s clerk of court refusing to bring out the disputed SALN’s by saying she didn’t bring them along to the Senate (when she actually did) and the second had to do with members of the House prosecution team denying that they publicly claimed CJ Justice Renato Corona has "45 properties" despite the fact that video clips and numerous witnesses saw them clearly doing so.

Doubtless, the court clerk and the House prosecutors have reasons for making the statements that they did. But such is beside the point. And frankly irrelevant. If one’s word can’t be taken at face value, society loses a basic component necessary for its proper functioning and that is "trust." It must be noted, though, that this behavior of placing minimal value in honesty cuts across social or political classes. Household helpers have no qualms declaring commitment to the houses they are serving but all the while knowing they will abandon that household that very evening. I know of faculty professors, even priests, who think it their God-given right to back out of commitments already made simply because something more favorable to them came up. One COO of a multinational firm thinks nothing of cravenly taking credit for revenues generated by his partner. Of course, we also know of that famous "promise" made by a president not to run again. Although in fairness, equally despicable (actually traitorous) were her Cabinet officials who declared (even sang) their commitment to her administration while simultaneously plotting her downfall.

The problem with all this dishonesty stems from our toleration of the same. It’s hard to pinpoint where or how or when this type of behavior steeped into our society. However, what is clear is that this must be stopped. As law professor Tamar Frankel (author of the book Trust and Honesty: America’s Business Culture at a Crossroad; Oxford University Press) says, if people "expect dishonesty, they might accept and even justify it. This expectation is dangerous. People may protect themselves from fraud by suspecting everyone they do not know well. They may cease to interact with others or start copying dishonest people who seem to be successful. The price of both reactions is devastating to our economy and well-being."

The foregoing point regarding the economic costs of dishonesty, as well as the benefits of truth telling, were amply corroborated by Rick Hayes-Roth in his research paper "The Value of Truth Telling" (2011), which pointed out:

"Several scholars have suggested that honesty, honor, fairness and other traditional values play a vital role in making capitalism and democracy function (Fukuyama 1995; Zak 2008). Others have recognized that capitalism and democracy reward greed and reinforce antisocial manipulators (Hayes-Roth 2011a). Some believe that enterprises can reconstruct themselves profitably around the principles of integrity and honoring one’s word (Jensen 2011). Our research complements their work by showing how lies materially harm business prospects, making it possible to increase value through truth telling. In the Internet Age, both harmful and salutary information flow at increasing rates, amplifying the latent value of truth (Hayes-Roth 2011c). Promiscuous customers have little loyalty to vendors and shun untrustworthy ones as too risky. The Internet will soon offer improved mechanisms to identify liars and truth-tellers and to filter out untrustworthy messages automatically. Businesses and other organizations will need to seize the opportunities to significantly improve their truthfulness quotients. Quantitative measurements of the value of truth telling will help management steer in a positive direction."

As Hayes-Roth bluntly concludes, "democracy and modern civilization might be at risk if citizens either give up on knowing what’s true or can’t easily separate credible information from propaganda and other types of misinformation."

As usual, the job of ensuring society stays honest lies with each and every citizen. As professor Frankel says: "The first step is to be aware of the change. The second is to recognize the harm of this change and the danger that it will become our permanent culture. The third is trying to restore the balance between morality and law and the justice of the market. The most important part is enforcement: not the police and not even the leadership can make the change. It is each and every one of us that must make it and demand it of each other. Keep the ‘realistic cynics’ away and isolated. Do not allow them to contaminate us."

So, while a Freedom of Information law may be important, more necessary, as professor Frankel insightfully says, is for people to reject "as symbols of success" any "con artists and charlatans," both of which we have a lot of nowadays.

We have to start realizing our words are who we are. If our words mean nothing, it’s likely because we think of ourselves the same.


’tini time!

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

After those articles about our frustrating loss at the WTO relating to excise taxes on distilled spirits, I’d like to take a moment to pay tribute to one of those real, truly exalted, achievements of mankind and that is: the martini. Oh, "what it does for the soul!" as Evelyn Waugh was once said to have exclaimed. And who can blame him? And I am in complete agreement with James Thurber: "One martini is all right. Two are too many, and three are not enough."

The ridiculous thing about this so supremely sublime is how simple it actually is. Or perhaps that’s the secret. Truly great things, things of genius, are actually simple. It’s only the blockhead who can make simple things seem complex. But the real great intellects are the ones who can make even the most complex of matters seem simple. As you can see, talk about martini and instantly it leads one to profundity. Which of course depends on what one means by "profound."

The classic martini is the only true martini: a goodly gin, a tiny dollop of vermouth, ice, stir, into a chilled martini glass. And that’s it. The question now is the matter of the lemon peel and the olive. Purists of either side of the great martini religious schism say discard the peel and just have olive. The olive would then give that olive-y, salty flavor over an otherwise crisp drink. Others believe in twisting a lemon peel on top of the martini to impart that citrusy flavor, not to mention the scent. Me, being a true Catholic and thus quite universal in outlook, would rather have it both: a single olive, with a large lemon peel.

The true origins of martini is as mysterious as God’s ways: the most commonly accepted version is that the martini is derived from the Martinez cocktail, allegedly mixed by bartender Julio Richelieu, which consists of vermouth, gin, bitters, ice, and a twist of lemon. Then there’s the tale of Jerry Thomas, a famous 19th century bartender in San Francisco. Another story involved John D. Rockefeller, who got enamored with this drink at the old Knickerbocker Hotel way back when and served by head Knickerbocker bartender Martini di Arma di Taggia. Or the martini could simply have come from a brand of vermouth commonly used for it: Martini and Rosso. Whatever version you believe, there is one commonality in all of them: a martini must have gin and vermouth.

Which leads to the topic that makes most martini purists foam at the mouth: vodka. Simply put, a vodka martini is not a martini. It is a vodka martini. And perhaps the only reason why vodka martini has the eminence that it has right now could be either laid at the feet of Frank Sinatra (who used Stolichnaya as his martini base) or, for which I’m more inclined to blame, James Bond.

But Bond’s martini is wrong on so many levels. Consider that classic piece of dialogue taken from Ian Fleming’s "Casino Royale (1953)":

"[Bond] looked carefully at the barman.
A dry martini," he said. "One. In a deep champagne goblet."
"Oui, monsieur."
"Just a moment. Three measures of Gordon’s, one of vodka, half a measure of Kina Lillet. Shake it very well until it’s ice-cold, then add a large thin slice of lemon peel. Got it?"
"Certainly, monsieur." The barman seemed pleased with the idea.
"Gosh, that’s certainly a drink," said Leiter.
Bond laughed. "When I’m… er… concentrating," he explained, "I never have more than one drink before dinner. But I do like that one to be large and very strong and very cold and very well-made. I hate small portions of anything, particularly when they taste bad. This drink’s my own invention. I’m going to patent it when I can think of a good name."

Bond would eventually call his creation the Vesper, named after a woman who would soon after betray him. Served him right. First of all, Kina Lillet isn’t even a vermouth. And, finally, to shake a martini rather than stir it would have a twofold effect: "bruise" the martini and then dilute it. So this tough guy actually prefers his drink watered down. But we shouldn’t really be tough on Bond. In fairness, vodka martini is not even his favorite drink. Not even the Vesper. It’s actually whiskey, straight. Which speaks positively about his character.

My favorite martini story is how Winston Churchill liked it so dry that he just strains chilled gin into his glass while looking at a bottle of vermouth. Indeed, the driest of martinis is one of the best things one can indulge in that doesn’t come with the drag of emotional wear and tear. As Sinatra was wont to say: "I pity those who don’t drink because when they get up in the morning that’s as good as they’re going to feel for the rest of the day."